Circuit revisits the right procedure for amending complaints in the face of Rule 12 motions

This case talks about the procedure guiding motions to dismiss a federal complain under Rule 12(b)(6). In particular, when can the plaintiff amend the complaint after the district court grants the motion to dismiss for failure to state a plausible claim? The Court of Appeals rejects the practice of at least one district court judge in holding that the time for plaintiff to file an amended complaint happens after the court rules on a motion to dismiss.

The case is Kopchik v. Town of East Fishkill, a summary order issued on December 26. I wrote about the ADEA and disability discrimination claims the other day. Not only did the Court of Appeals reinstate the plaintiff's claims on the merits, it throws in a few words about the district court's complaint-amendment procedures.

The district courts know that a motion to dismiss can actually result in two motions. If the first motion is granted because the plaintiff does not allege enough facts to state a claim, the plaintiff can amend the complaint once under rules. This means that, in opposing the motion to dismiss, the plaintiff might also cross-move to amend the complaint to fill in any deficiencies identified by defense counsel in filing the motion. Federal judges do not want two motions to dismiss in the same case, so they have procedures to prevent that. Some judges have the lawyers appear in court for a pre-motion conference to argue the merits of the motion before defense counsel even files it. During that colloquy, the judge might ask plaintiff's counsel if he wants to amend the complaint before the motion is file. Another approach, followed by the district court in this case, is to put the motion to dismiss on hold to see if plaintiff wants to file an amended complaint rather than oppose the motion; if plaintiff choose that route, the motion to dismiss is set aside, as we have a new complaint in the case, though defendant can move against the new complaint, as well. Under this procedure, if plaintiff chooses not to file an amended complaint in the face of defendant's motion, he forfeits the right to file an amended complaint.

The Court of Appeals notes that it has already rejected the latter procedure, citing Lorely Fin. No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 189-91 (2d Cir. 2015). In light of that case, the Court says, "there is no obligation on a plaintiff to expend time and resources to amend a complaint before knowing whether the court will find it insufficient, and if so, in what ways." The Court said in the Lorely case, "Without the benefit of a ruling, many a plaintiff will not see the necessity of amendment   or be in a position to weigh the practicality and possible means of curing specific deficiencies." In the end, the Court says, "It is inappropriate to deny a plaintiff the opportunity to replied after a defendant's motion to dismiss is granted, simply because the plaintiff decided not to replied before learning whether the court would find the complaint insufficient. The opportunity to amend the complaint is appropriately presented after the district court rules on a motion to dismiss."

Town board's fancy footwork in restructuring positions supports ADEA retaliation claim

Employers can get pretty creative when it comes to discriminating against people who file discrimination charges with the EEOC. The Court of Appeals recognizes that notion in reinstating an age discrimination lawsuit against a Duchess County municipality.

The case is Kopchik v. Town of East Fishkill, a summary order issued on December 26, a Christmas present for plaintiff, who claims he resigned his position under duress after the town eliminated a class of building and maintenance positions and then re-hired everyone but plaintiff, who instead was offered a position that he could not physically perform in light of his injuries arising from a job-related motor vehicle accident. This kind of fancy footwork could support plaintiff's retaliation claim, the Court of Appeals (Leval, Droney and Walker) says.

The Second Circuit raises a few interesting points. First, while the district court said there is no retaliation claim because the reorganization took place nine months after plaintiff filed the EEOC charge, the Court of Appeals notes there is no bright-line time-gap that will support or kill off a retaliation claim. Each case has to be evaluated in context. The Court says the nine-month gap may be explained by the amount of time it would take for the Town Board to undertake and formally adopt the restructuring. This reasoning reflects the reality of municipal decisionmaking, where nothing happens overnight. In addition, the Court of Appeals says, the retaliation could have stemmed from a prior EEOC charge that plaintiff filed in relation to earlier discrimination that plaintiff did not turn into a lawsuit. After the 90-day deadline for plaintiff to file a lawsuit in connection with that earlier charge came and went without a lawsuit, the Town Board waited another two months pass its job-restructuring resolution. While the trial court said in dismissing the case that it was not plausible for the Town Board to wait another two months to retaliate, the Court of Appeals says "it would be plausible for the Town to let some further time pass, so as to conceal its motivation." I have not previously seen this reasoning in a Second Circuit ruling. A smart plaintiff's lawyer will use that reasoning to explain away a lengthy time-gap between the protected activity and the retaliation. But bear in mind this is a summary order and not a precedential opinion, though summary orders may be cited if you've got nothing else.

In any event, we also have differential treatment between plaintiff and his non-disabled colleagues such that the time-gap does not alone revive plaintiff's lawsuit. Since other workers had their jobs eliminated but were brought back into town employment except for plaintiff, that also supports the minimal prima facie case.

These facts also revive plaintiff's disability discrimination claim, as management knew plaintiff was seriously injured and it futzed around with the positions to eliminate him from the town workforce, the Court of Appeals says. While the district court said that whether the town board's resolution eliminating the maintenance workers' positions "had a unique effect on plaintiff because of his disability is irrelevant to the causal connection" element of the prima facie case, the Second Circuit sees it differently. The resolution appeared to be designed to exclude plaintiff while bringing everyone else back to work. Under the minimal prima facie standard, plaintiffs states a plausible claim.

You have the right to own a chuka stick

A federal judge in New York has ruled that state law that prohibits ownership of nunchaku, or chuka sticks, violates the Second Amendment's right to bear arms.

The case is Maloney v. Singas, decided by Eastern District Judge Chen on December 14. This case has been kicking around for 15 years, having twice reached the Second Circuit, which first ruled against the plaintiff but later allowed the lawsuit to proceed after the Supreme Court in 2008 held the Second Amendment protects the individual right to gun ownership. Following this ruling, I can predict the case will reach the Second Circuit a third time.

The chuka stick is a martial arts instrument used recreationally in martial arts training, practice and performance. It is primarily used in self-defense as a weapon. At the evidentiary hearing on the statute's constitutionality, the court learned that nearly 65,000 chuka sticks were sold in the United States between 1995 and 2018, and that over a two-year period recently, Nassau County (the defendant in this case) prosecuted only five people for crimes involving the nunchaku.

The district court applies the constitutional analysis that the Supreme Court devised in the Heller case from 2008, which says the Second Amendment only protects weapons that are "in common use" and are "typically possessed by law-abiding citizens for lawful purposes." The court finds there is a rebuttable presumption that these weapons are protected under the Second Amendment. A lot of these things are floating around, and few people are arrested for using them criminally.

In reviewing the constitutionality of statutes under the Second Amendment, courts apply "intermediate scrutiny," which requires the government to advance a good reason for the restriction (as opposed to "strict scrutiny" which requires a compelling reason). Under this test, the restriction must be substantially related to an important governmental interest. While the court recognizes that protecting the community from crime is an important interest, plaintiff wins the case because the restriction against chuka sticks is not substantially related to that objective, as there is a dearth of nunchaku-related crime and the state's ban against these weapons is all-encompassing. "Defendant has offered virtually no evidence supporting a public safety rationale for a total ban (as opposed to lesser restrictions" on the possession of nunchaku in New York State.

Coerced speech doctrine applies in HIV/AIDS policy case

This long-running case has already been the U.S. Supreme Court and back. It involves a federal policy that says the government will only fund international HIV/AIDS programs if the recipients adopt policies against prostitution and sex trafficking. This may surprise you, but that policy requirement violates the First Amendment as a form of coerced speech.

The case is Alliance for Open Society v. United States Agency for International Development, issued on December 20. The first time this case reached the Second Circuit a few years ago, the Court held that the policy requirement violates the First Amendment rights of domestic organizations that receive this governmental funding. From what I recall, there was a good reason for this holding, though it is counter-intuitive (who would be in favor of sex trafficking?). The Supreme Court agreed with the Second Circuit's reasoning in this case.

The case returns to the Court of Appeals on a related issue: does the policy requirement violate the First Amendment when the domestic organization is closely affiliated with a foreign entity that follows a contrary policy? Over a dissent from Judge Straub, the Second Circuit (Parker and Pooler) says that it does. In that circumstance, the policy cannot apply to the foreign affiliates. Judge Parker explains why: the domestic organizations are affiliated with foreign entities who work on the HIV/AIDS programs. These entities try to maintain a unified global identity, with consistent branding. When this case reached the Supreme Court five years ago, the Court said that where an entity is clearly identified with another recipient of government funds and it rejects the government's message, its ability to speak is compromised when its affiliate is forced to speak to government's contrasting message. Consistency of message is key under this First Amendment doctrine. The Supreme Court's reasoning applies in this case. As Judge Parker writes:

These principles decide this appeal. Here, the affiliates are clearly identified with plaintiffs, and to require the affiliates to abide by the Policy Requirement would require the closely related—and often indistinguishable—plaintiffs to be seen as simultaneously asserting two conflicting messages. This is the “evident hypocrisy” to which the Chief Justice referred: when the Government requires contrasting, hypocritical messages between domestic and foreign affiliates by making one speak the Government’s message, this requirement infringes the speech of the domestic affiliate and, in so doing, violates the First Amendment. Indeed, the Government itself acknowledges that forced hypocrisy can impair an entity’s ability to speak: “It may be true that when two organizations are closely linked, in some circumstances the speech of one can be seen as the speech of both.”

Public university employee could be retaliated against over nepotism complaint

Another First Amendment retaliation case is dismissed as the Second Circuit finds that decisionmakers did not violate the First Amendment in "retaliating" against a public employee who complained about nepotism at the University of Connecticut.

The case is Weinstein v. University of Connecticut, a summary order issued on December 4. Public workers do have free speech rights, unlike private employees, whose workplaces are not regulated by the Constitution. You cannot suffer retaliation for speaking on a matter of public concern, generally defined as anything that would interest the public. But speech on private matters is not protected under the First Amendment.

Weinstein brought a complaint to the University's Director of Compliance concerning the Dean of the School Business. In filing a labor grievance with the University, Weinstein said the Dean engaged in nepotistic behavior. This led defendants to decline to reappoint plaintiff to his position.

Public concern speech is protected under the Constitution in that public management cannot retaliate against the employees for speaking out. Speech about nepotism might be of interest to the public, but plaintiff loses because, in context, it was private speech. At a minimum, the Court of of Appeals (Livingston, Lohier and Cortty [D.J.]), these defendants have qualified immunity because reasonable public administrators could have believed in 2011 that it was legal to retaliate against plaintiff.

At the time the University decided not to reappoint Weinstein (2011), our case law indicated that for speech to be on a matter of public concern it should have “a broader public purpose” and not be merely “calculated to redress personal grievances.” By contrast, Weinstein’s complaints were “personal in nature and generally related to [his] own situation,” and did not expose “pervasive or systemic misconduct by a public agency.” Weinstein made his first nepotism allegations while disputing changes being made to the University’s Innovation Accelerator Program, and subsequently when contesting the University’s handling of his reappointment. In both instances, his speech was focused on the private matter of his employment, which is not a matter of public concern.

Pro se school administrator wins breach of contract appeal

I am always impressed when a pro se litigant wins an appeal against a counseled defendant. In this case, a pro se school administrator wins her breach of contract appeal in the Second Circuit.

The case is Williams v. Buffalo Public Schools, a summary order issued on December 12. Williams sues for breach of contract. The school board terminated her employment, claiming she did not properly maintain her professional certifications, as required under the employment contract. But this case demonstrates how breach of contract cases are not so easy. Yes, Williams did not have the appropriate New York certification. But, she alleged in the complaint, she had professional certificates from Oklahoma and Florida, and at the time of her interview and hiring, she told defendants that she did not have a valid New York certification. During her first week, she applied for reciprocity from the State Education Department, and she later got a School District Leader Internship Certificate, suitable for a district-wide supervision position.

The Court of Appeals (Lynch, Hall and Carney) reinstates the lawsuit because, while the job posting says candidates must have a permanent teacher certificate and a New York school district administrator certificate, the contract is silent as to these certifications. The lawsuit plausibly alleges that Williams' alternative certifications satisfied the requirements in the contract. We can also plausibly infer that the district waived its right to enforce the contract's New York certification requirement, as plaintiff alleges the district knew she did not have that certification but they hired her anyway. That's waiver, my friends. Although the contract contains a non-waiver clause, state law does not preclude a waiver of contractual rights.

While the breach of contract claim is reinstated, the Court of Appeals affirms the dismissal of plaintiff's defamation claim, stemming from Board member Carl Paladino's statements that the district was "dizzy" for hiring plaintiff, whom he called a "hanger on." Paladino is a well-known loudmouth who ran for governor in 2010. These comments are not assertions of fact and therefore cannot be proven false. Hence, no defamation claim.

Retaliation case against City of Ithaca goes to trial a fourth time

This case has been around for quite some time. Plaintiff was a police officer for the City of Ithaca. The case was filed in 2010 and went to trial in 2012, when the jury awarded $2 million on the Title VII retaliation claim. After the trial court granted the City a new trial, the case went to trial again in 2015, when the jury awarded plaintiff $480,000 in damages, including $220,000 for pain and suffering relating to retaliatory "beat assignments." The trial court said the damages for the beat assignments were too high and the plaintiff could either take $50,000 on remittitur or have a new trial on damages on that claim (while also sustaining a separate damages award in the amount of $260,000 arising from a retaliatory notice of discipline). Most plaintiffs take the reduced amount, but this plaintiff opted for a new trial. So another trial on damages took place in 2016, and the jury awarded him less money than the remittitur, $20,000, on the beat assignments claim. The City appeals, and the Second Circuit finds the jury was not properly instructed on both retaliation claims, so the third verdict is now gone, as the Court of Appeals orders a fourth trial.

The case is Miller v. City of Ithaca, a summary order issued on December 18. When the liability portion of the case originally went to trial in 2012, the district court charged the jury that plaintiff can win the retaliation case if he shows his protected activity under Title VII was a motivating factor for the various adverse actions that plaintiff endured. The problem is that, since that verdict came down, the Supreme Court in University of Texas Medical Center v. Nassar, 570 U.S. 339 (2013), said the motivating factor standard does not govern Title VII retaliation cases and that, to win, the plaintiff has to show the retaliatory intent was the "but-for" cause of the retaliation. Motivating factor is a more plaintiff-friendly standard, as it does not have to be the factor that makes the difference in the personnel decision. Under the but-for test, the plaintiff has to show the retaliatory intent by itself made a difference, even if it was not the sole cause.

What it means for Miller is that, after all this time, this case proceeded in the district court under a liability standard that the Supreme Court has since repudiated. After three trials in this case, a fourth trial is now warranted, under the new jury charge. The beat assignment and notice of discipline claims will again go before a jury.

On this appeal, the City did try to prevent a fourth trial altogether, claiming that plaintiff did not actually suffer any adverse actions. The Second Circuit rejects that argument ruling that the beat assignments that the City ordered plaintiff to take on were sufficiently adverse because they usually went to junior officers and were seen as "punishment" beats when given to senior officers like plaintiff. It is that ruling -- that plaintiff did suffer an adverse action -- that allows this case to return to trial a fourth time, as there is still something worth suing for.